STATE OF TASMANIA v S G R 8 AUGUST 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr R, a jury has found you guilty of two counts of rape.
The crimes were committed against your wife. She gave evidence at your trial. It is clear that the jury accepted her version of the events relevant to the commission of each crime as truthful and accurate. You were found guilty of these crimes, but not guilty of the primary charge of persistent family violence. The prosecution had relied upon three separate acts of rape in order to sustain the primary charge. In answer to a question from me after the delivery of the verdict, the jury identified the last two acts as those subject to the verdict of guilty. I agree with the jury about this. Such a conclusion is consistent with the jury accepting the complainant’s evidence but experiencing a reasonable doubt with respect to the question of consent in relation to the first occasion. I also accept the complainant’s evidence, particularly with respect to the two acts of rape of which you have been found guilty. I will determine the factual basis of sentence accordingly.
You are 43 years of age. You and your wife have been married since 2007 and have three children who are currently aged 11, 8 and 4. In September 2017, you were convicted of a number of family violence offences relating to your wife. These included an assault upon her on 28 June 2017, which included placing a cord around her neck. She gave evidence at the trial about this incident. The assault was brutal and frightening. You were sentenced to a partially suspended term of imprisonment and a period of probation. In November 2017, that sentence was activated and you were sentenced to further imprisonment for breaches of the family violence order which had been made at the time of sentencing in June 2017. In June 2018, you received a sentence of imprisonment for further breaches of the family violence order.
The events with which this case is concerned occurred immediately after your release from prison after serving the sentence imposed in June. You were invited by your wife to stay at her house, which was your marital home, after your release on 6 July 2018. You suggested in the police interview that your wife agreed to this because you had nowhere else to go, and your counsel has made some submissions about that today. In any event, it is clear that the complainant made the travel arrangements and was agreeable to you staying with her. In order to comply with one condition of the family violence order, it was necessary for someone else to be present when you and she were together, and she made arrangements for your daughter from a prior relationship to stay in the house for that purpose.
From the time of your arrival, you and the complainant slept together in the marital bed. It is common ground that you had sex together on a number of occasions after your arrival. You told police that you were asking for sex “maybe more than usual” and that this was because you and your wife had not spent “a lot of time together over the last 12 months”. With the exception of the first occasion relied upon by the prosecution, it is not suggested that the acts of sexual intercourse prior to the two occasions which constitute the crimes of which you have been found guilty, were without her consent. The first occasion relied upon by the prosecution as a component of the primary charge was alleged to have occurred on Sunday, 8 July. The complainant’s evidence was that she had agreed to have sex with you on this occasion because she was scared of you. Her fear arose from the assault perpetrated in 2017. It is common ground that sex occurred on that first occasion. It follows from the verdict that the jury was not satisfied that there was a lack of consent to sexual intercourse on this occasion. I will, of course, proceed on that basis.
The facts which constitute the specific crimes of which you were found guilty are as follows. On the night of Saturday, 14 July, your 4-year-old child was having difficulty getting to sleep and your wife had allowed her to sleep in the bed which you and she shared. During the night, your wife left the child sleeping in that bed and went into the children’s room to sleep. Sometime later, you came into that room and told your wife that you were looking for her boyfriend, whom you believed was present in the room. This was a complete delusion, your wife did not have a boyfriend and nobody else was present or likely to be present in the house apart from the children. You told your wife to go back to the marital bed. She did so and you remained in the children’s bedroom.
She went to sleep when she got back into that bed, but awoke in the early hours of the morning. You were in the bed naked and touching her on her bottom and vagina. The child was no longer there. You told your wife that you had put the child back in her bed. You then commenced to remove the complainant’s pyjama pants. She said “No”, and told you to her me alone. You replied by telling her that you would be quick. She tried to physically resist you but you used your greater physical strength to pin her to the bed and then have sexual intercourse with her. Because she was pinned, she found it difficult to breathe during the intercourse. She does not assert that you deliberately restricted her breathing but this was the effect of the force you were using. I infer that you ejaculated during intercourse.
The second rape occurred during the following night. It followed a similar pattern. The complainant awoke during the night to find you lying on the floor beside the bed, on her side of the bed, and using your hand to feel around as if checking for the presence of someone else. You then got on top of her on the bed and, despite physical resistance from her, again pinned her down, removed her clothing and had forced sexual intercourse with her. During the course of holding her down, you held and leaned heavily on her arms, causing some bruising. The complainant experienced pain as a result of the pressure you used to hold her to the bed.
Notwithstanding that consensual sexual intercourse had taken place earlier in the week, the complainant clearly expressed her lack of consent to sex on these occasions. She did so by words and action. You used force to overcome her physical resistance. Her consent or lack of it was immaterial to your desire to achieve sexual gratification and to assert dominance and control over her. This was family violence of a very serious kind. The fact that your children were present in the house while you perpetrated these crimes is a serious aggravating factor. I also regard as significant that the rapes took place in the context of wider family violence, including a number of breaches of the family violence order. I should make the point at this stage that I am also dealing with the two counts of breaching the family violence order, to which you have pleaded guilty. The complainant says that she was in fear of you. Your past conduct and your bizarre belief that she was having an affair and that her boyfriend was present in the bedroom during all of these events, contributed to a terrifying context for the crimes.
In her impact statement which the complainant has just read to me, the complainant describes the debilitating effects of your conduct, including your constant demands for sex. I will exercise some caution in this regard when formulating sentence because she is obviously referring to the effects flowing from the entire relationship, and you are to be punished for these crimes only. However, the crimes were committed within the context of ongoing family violence and it is appropriate to assess the effect of these crimes on that basis. I have no doubt that the effect on your wife of these crimes compounded in a significant way the trauma and degradation she was already experiencing, and has had serious and ongoing consequences for her. I have no doubt that these consequences have also affected your children in the manner described by her in her statement.
I have already referred to some relevant aspects of your criminal history. However, this history extends beyond the family violence offending. It commences with convictions for offences when you were 17 years of age. You have been regularly offending in various ways since that time. However, I do note that you do not have any previous convictions for offences of a sexual nature, although the prior family violence offending is obviously of some importance. I note also your general history as described today by your counsel. I take into account that history. I note, in particular, the difficulties you experienced in childhood, including what you have today asserted included sexual abuse when you were a child. You have obviously had longstanding problems with the use of illicit drugs. I note that you entered rehabilitation in the early 2000s, but in recent years you have relapsed into the use of drugs. That history, particularly of illicit drug use is relevant in a general way to your overall circumstances. It might provide some explanation, but certainly no excuse for the family violence offending. I do not think that it has any significant relevance to your culpability in relation to the commission of primary crimes of which you were found guilty by the jury.
I regard these crimes, particularly the crimes of which you were found guilty, as very serious. Family and sexual violence are rejected by the law and the community, and must be deterred by appropriate punishment. General deterrence and denunciation are the predominant sentencing considerations. I think that personal deterrence also has a role to play in the formulation of the sentence. There is little which mitigates the seriousness of the offending, although, given the amount of time you have spent in custody, and the sentence you are likely to receive for these crimes, the totality principle obviously has to be taken into account.
S G R you are convicted of the crimes of which you have been found guilty and sentenced to imprisonment in respect of those crimes for a global period of five years. I convict you of the offences with which I am dealing, the offences of breach of the family violence order, and I include the punishment for those offences within that global sentence. The sentence will take effect from the date you were originally remanded in custody which is 18 July 2018. I order that you not be eligible for parole until you have served three years of that sentence. The non-parole period represents the minimum time which I consider you should spend in custody, having regard to the aggravating features of the crimes, including the family violence context, the presence of the children in the house, and your use of actual force to overcome the complainant’s resistance. A further relevant consideration to the assessment of the non-parole period is your history of prior convictions and, in particular, your prior family violence offending
Pursuant to s 13A of the Family Violence Act, I direct that each crime and each offence with which I have dealt today be recorded on your criminal record as a family violence offence.
Further, I am required to make an order under the Community Protection (Offender Reporting) Act 2005, unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. Having regard to the circumstances of this case, I am not satisfied of that matter and, accordingly, must make an order. I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for a period of eight years commencing on the date of your actual release from prison.
Because of the serious nature of these crimes, and because of the time that you are likely to spend in custody, I think it is appropriate that I exercise my power to make a family violence order, and I intend to do so by simply varying the extant family violence order which is an order which was made by the Magistrates Court on 18 April 2019. I vary that order, firstly, by providing that the order will remain in force indefinitely, and until revoked or varied by a court of competent jurisdiction. Further, I order that paragraphs 10, 11 and 12 of that order be removed.